Deakins v. Aarsen et al., [1971] SCR 609

Supreme Court of Canada

Deakins v. Aarsen et al., [1971] S.C.R. 609

Date: 1970-12-21

Ellen Deakins (Defendant) Appellant;

and

Otto Aarsen and Mary Aarsen (Plaintiffs) Respondents;

and

Lois Elaine Deakins (Defendant) Respondent.

1970: November 4, 5; 1970: December 21.

Present: Judson, Ritchie, Spence, Pigeon and Laskin JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.

Motor vehicles—Negligence—Collision caused by negligence of driver of appellant’s motor vehicle—Whether motor vehicle was “without the owner’s consent in the possession of some person other than the owner or his chauffeur”—Implied consent—The Highway Traffic Act, R.S.O. 1960, c. 172, s. 105(1).

In an action arising out of a motor vehicle collision, the trial judge found that the defendant E, as the owner of one of the vehicles involved, was liable for damages sustained by the plaintiffs as the result of the collision which was admittedly caused by the negligence of the defendant L in the operation of E’s car. L was the girl friend of E’s son and had been instructed by him in how to drive the car. The son had permission to use his mother’s car whenever he wanted it for his own purposes, and on the evening of the accident he and L had driven to a restaurant with two friends. When they entered the restaurant the car was left with the doors unlocked and the keys in the ashtray and during the course of the evening L left the restaurant for the purpose of driving her girl friend somewhere. It was during this drive that the accident occurred.

An appeal from the trial judgment was dismissed by the Court of Appeal and E then appealed to this Court. The sole issue was whether at the time of the accident E’s car was “without the owner’s consent in the possession of some person other than the owner or his chauffeur” so as to entitle E to rely on the exception contained in s. 105(1) of The Highway Traffic Act, R.S.O. 1960, c. 172.

Held: The appeal should be dismissed.

The motor vehicle in question, although registered in E’s name, was for all practical purposes her son’s

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car and E exercised no control over who was to drive it. She had given her tacit approval at all times to the car being driven by anyone to whom her son entrusted it. There was an implied consent on the part of the son, and through him on the part of the mother, for the girl to drive.

APPEAL from a judgment of the Court of Appeal for Ontario, dismissing an appeal from a judgment of Grant J. Appeal dismissed.

W.B. Williston, Q.C., and J.S. Armstrong, for the defendant, appellant.

V.K. McKewan, for the defendant, respondent.

The judgment of the Court was delivered by

RITCHIE J.—This is an appeal by Ellen Deakins from a judgment of the Court of Appeal for Ontario dismissing, without written reasons, an appeal from the judgment rendered at trial by Grant J. whereby he found that the said Ellen Deakins, as the owner of a 1959 Meteor sedan, was liable for damages sustained by Otto and Mary Aarsen as the result of a motor vehicle collision which was admittedly caused by the negligence of Lois Elaine Deakins in the operation of the said Meteor sedan.

It is admitted and agreed by all parties to this action that:

(a) as a result of the collision the respondents, Otto and Mary Aarsen suffered damages in the total amount of $18,053.46;

(b) the sole cause of the accident was the negligent driving of the respondent, Lois Elaine Deakins; and

(c) the appellant Ellen Deakins was the owner of the vehicle driven by the respondent, Lois Elaine Deakins at the time of the accident.

The damages were divided so that Mary Aarsen was awarded $10,000 general damages and her husband, Otto, $2,500 general and $5,553.46 special damages. Under all the circumstances leave to appeal the award made in favour of Otto Aarsen was granted by this Court.

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The sole issue on this appeal is whether at the time of the accident the Meteor sedan was “without the owner’s consent in the possession of some person other than the owner or his chauffeur” so as to entitle Ellen Deakins to rely on the exception contained in the latter part of s. 105(1) of The Highway Traffic Act, R.S.O. 1960, c. 172, which reads as follows:

105. (1) The owner of a motor vehicle is liable for loss or damage sustained by any person by reason of negligence in the operation of the motor vehicle on a highway unless the motor vehicle was without the owner’s consent in the possession of some person other than the owner or his chauffeur, and the driver of a motor vehicle not being the owner is liable to the same extent as the owner.

The burden of proving that the 1959 Meteor sedan registered in the name of the appellant, which is the vehicle here in question, was being driven without her consent, rests upon the appellant Ellen Deakins. There is no evidence that the appellant gave express consent to the motor vehicle being operated by the respondent and the question to be determined by the trial judge therefore was whether the circumstances were such as would show that Lois Elaine Deakins was, at the time of the accident, in possession of the motor vehicle in question with the implied consent of the appellant. (See Palsky et al. v. Humphrey et al.[1], per Spence J. at pp. 582 and 583.)

The evidence discloses that the appellant and her husband, Lloyd, had a son, Robert, aged 19, who lived at home and who was permitted to use the said 1959 Meteor sedan whenever he wanted if for his own purposes. The son appears to have been an irresponsible young man who was frequently intoxicated and the appellant emerges as a tolerant if not indulgent mother who knew that her son was drinking when he had the car and who made no objection to his being driven home by a friend when he was too far gone in liquor to drive himself. Although she said that she had told him not to drive when he was drinking and not to let anyone else drive the Meteor, the

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learned trial judge, in my opinion, rightly discounted the appellant’s evidence as to the latter prohibition. She knew that her son was in the habit of drinking in the evening while using the Meteor and if he was to come home at all, he would have to drive it himself or let one of his friends take the wheel.

About eleven weeks before the date of the accident, Robert Deakins had become attached to a young lady by the name of Lois Elaine Parker and had begun taking her out about six nights a week. This young girl and Mrs. Deakins had become good friends and sometime after the accident Robert married her. She is the respondent in this appeal.

I am satisfied that the Meteor sedan, although registered in Mrs. Deakins’ name, was for all practical purposes Robert’s car and that his mother exercised no control over who was to drive it. She was well aware that Lois Parker was her son’s constant companion and that she went out with him in the Meteor, and although she did not know that the young girl had a beginner’s permit and had been instructed by Robert as to how to drive the gear shift Meteor, she nevertheless, in my opinion, gave her tacit approval at all times to the car being driven by anyone to whom Robert entrusted it.

On the evening of the accident Robert and Lois had driven to a restaurant in Port Credit with two friends. When they entered the restaurant the Meteor was left with the doors unlocked and the keys in the ashtray and during the course of the evening Lois left the restaurant for the purpose of driving her girl friend somewhere. It was during this drive that the accident occurred.

There is no evidence that Robert gave his express consent to Lois taking the car on the evening in question, but he was very intimate with the girl and his carefree attitude in leaving the keys where they were, taken together with the fact that he had instructed her in how to drive the car and knew that she had driven it on her own on at least one previous occasion, in my opinion clearly justified the learned trial judge in finding that there was an implied consent on

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the part of Robert, and through him on the part of his mother, for the girl to drive.

The learned trial judge made a careful analysis of the facts and it is apparent that the Court of Appeal concurred in his finding that Ellen Deakins had not satisfied the onus of proving that the Meteor was in the possession of Lois without her consent at the time of the accident.

Notwithstanding the careful, critical analysis of the learned trial judge’s reasons for judgment which was presented by counsel for the appellant, I am nevertheless of the opinion that they contain no error which would justify this Court in interfering with the conclusion reached at the trial.

I would dismiss this appeal with costs.

Appeal dismissed with costs.

Solicitors for the defendant, appellant: Cox & Armstrong, Toronto.

Solicitors for the plaintiffs, respondents: Jackson, Watson, Gillespie, Lane & Greenwood, Port Credit

Solicitors for the defendant, respondent: Thomson, Rogers, Toronto.